FILED

February 13, 1998

Cecil W. Crowson

Appellate Court Clerk

MARCUS WEST, )

Petitioner/Appellant, )

) APPEAL NO.

v. ) 01-A-01-9706-CV-00243

)

TENNESSEE DEPARTMENT OF ) CIRCUIT COURT NO.

CORRECTION and MORGAN ) 96C-2353

COUNTY REGIONAL PRISON, )

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE FIFTH CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE

MARCUS WEST, PRO SE

TDOC No. 234495

C.C.W.C.

Caller #1

Roan Mt., Tennessee 37687

JOHN KNOX WALKUP

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

SOHNIA W. HONG

Assistant Attorney General

Civil Rights and Claims Division

2nd Floor Cordell Hull Building

425 Fifth Avenue North

Nashville, Tennessee 37243-0488

ATTORNEY FOR THE RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
2

OPINION

This is an appeal by petitioner/appellant, Marcus West, from an order of the

trial court granting the motion to dismiss for failure to state a basis for a writ of

certiorari or summary judgment of respondents/appellees, the Tennessee Department

of Correction (“the Department”) and the Morgan County Regional Facility (‘the

Facility”). The facts out of which this matter arose are as follows.

The Facility charged Appellant on 20 November 1995 with conspiracy to

violate state law. The Facility’s disciplinary board held a hearing and convicted

Appellant of the offense. Appellant appealed to the Facility’s warden who denied the

appeal. On 26 April 1996, the Commissioner of Correction denied Appellant’s

second appeal.

Appellant filed a petition for writ of certiorari in the Davidson County Circuit

Court on 21 June 1996. Appellant alleged the Facility: 1) denied Appellant the

opportunity to call witnesses on his behalf; 2) denied Appellant an adequate written

statement of the fact finder; 3) improperly relied on unverified, unsubstantiated

information from an informant; and 4) failed to adhere to the time requirement in the

Facility’s regulations. Appellees filed a motion to dismiss or for summary judgment

on 21 August 1996. Appellees claimed the petition failed to state a basis for the writ

of certiorari. The motion contained a notice to Appellant which stated: 

Pursuant to Local rules § 12.05(c), Davidson County Local Rules

of Practice, the Petitioner is hereby notified that the above motion will

be heard on Friday, the 27th day of September, 1996, at 9:00 a.m. in

Davidson County Circuit Court. You are further notified that a failure

to file, serve and enter a timely written response to the motion in the

motion book will result in the motion being granted without further

hearing. Counsel for the Respondents has requested that the above

motion be heard without oral argument. 

Appellant delivered his response to an individual at the correctional facility on 25

September 1996, and the clerk filed the response on 30 September 1996. The trial

court filed an order on 13 December 1996 granting Appellees’ motion and dismissing

the petition. The order stated: “wherein it appears that no timely response was filed,

the Motion is well taken and should be granted.” Appellant filed a motion to

reconsider the order of dismissal on 19 December 1996. The trial court denied

Appellant’s motion on 23 April 1997. In the meantime, Appellant filed a notice of
3

appeal on 15 January 1997. The only issue is whether the trial court erred in

dismissing the petition.

Appellees contend that the trial court correctly granted the motion pursuant to

local rule 12.04. This rule states in pertinent part as follows:

(c) If the motion is opposed, a written response to the motion

must be filed and served on all parties. The response shall state with

particularity the grounds for opposition to the motion, supported by

legal authority, if applicable. If no response is filed, the motion shall be

granted.

(d) Responses to motions, including counter-affidavits,

depositions, briefs or any other matters presented in opposition to

motions, must be filed with the clerk's office by the close of business on

the Monday before the Friday on which the motion is to be heard. In

Chancery cases, a notation of the filing of a response must be entered on

the motion book at the time the response is filed. The response must

also be served upon all parties no later than 5:00 p.m. on the Monday

before the Friday on which the motion is to be heard.

. . . . 

(f) IF NO RESPONSE IS TIMELY FILED AND SERVED, AND

IN CHANCERY CASES ENTERED IN THE MOTION BOOK, THE

MOTION SHALL BE GRANTED AND COUNSEL OR PRO SE

LITIGANT NEED NOT APPEAR IN COURT AT THE TIME AND

DATE SCHEDULED FOR THE HEARING. Counsel or pro se litigant

shall then submit the proposed order consistent with Local Rule 25. The

order shall recite that no response was timely filed or served.

DAVIDSON CO.CTS. OF REC.R.12.04(c), (d) & (f). Appellees properly set the hearing

for Friday, 27 September 1996. Thus, the deadline for Appellant’s response to the

motion was Monday, 23 September 1996. The trial court filed Appellant’s response

on 30 September, one week after the deadline.

Appellant contends this court should apply the “mailbox rule” thereby causing

the filing date to be the date the inmate delivers the documents to the appropriate

individual at the correctional facility. Despite Appellant’s contention, we do not have

to decide whether to apply the “mailbox rule.” To explain, Appellant admits he

delivered the response to an individual at the correctional facility on 25 September

1996, two days after the deadline for the response. Thus, even if this court were to

adopt the “mailbox rule” and apply it to the instant case, we would still come to the

conclusion that Appellant’s response was not timely filed.

Appellant makes numerous arguments based on the differences between
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motions for summary judgment and motions to dismiss. The nature of the motion is

irrelevant, however, for the purposes of this appeal. Rule 12.04(c) of the Davidson

County Local Rules specifically provides that a non-movant shall file a response to

a motion if the motion is opposed. Moreover, as previously stated, the court must

grant the motion pursuant to Rule 12.04(f) if the non-movant does not file the

response on the Monday before the Friday on which the motion is to be heard. Thus,

the rules required Appellant to file a timely response regardless of the type of motion

or suffer the consequences of the trial court granting the motion.

Having reviewed and considered each of Appellant’s argument, it is the

opinion of this court that the trial court properly dismissed the petition for writ of

certiorari. Therefore, the decision of the trial court is affirmed and the case is

remanded for any further necessary proceedings. Costs of appeal are taxed against

petitioner/appellant, Marcus West.

_____________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_______________________________

BEN H. CANTRELL, JUDGE

_______________________________

WILLIAM C. KOCH, JR, JUDGE